Health Law and Policy Commons^™

Do Smokers Underestimate Risks?, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

This paper uses a national survey of 3,119 individuals to examine the effect of lung cancer risk perceptions on smoking activity. Both smokers and nonsmokers greatly overestimate the lung cancer risk of cigarette smoking, and the extent of the overestimation is much greater than the extent of underestimation. These risk perceptions in turn significantly reduce the probability of smoking, as suggested by an economic model of risky consumption decisions. Cigarette excise taxes in effect endow individuals with additional risk perceptions comparable to their current assessed lung cancer risks

Utility Functions That Depend On Health Status: Estimates And Economic Implications, W. Kip Viscusi, William N. Evans

Vanderbilt Law School Faculty Publications

Taylor's series and logarithmic estimates of health state-dependent utility functions both imply that job injuries reduce one's utility and marginal utility of income, thus rejecting the monetary loss equivalent formulation. Injury valuations have unitary income elasticity, and the valuation of non-incremental risk changes and effects of base risks follow economic predictions.

Walking In Their Shoes: Paying Respect To Incompetent Patients, D. Don Welch

Vanderbilt Law Review

One of the great games that judges play is to act as if their decisions are based on objective standards. For understandable reasons,judges prefer that their decrees be seen as resting on accepted principles of law rather than on a judicial choice between two competing,plausible opinions. One such accepted principle has been that decisions giving consent for medical treatment of incompetent patients should be made to serve the "best interests" of the patients.' In recent years,courts increasingly have used a new, seemingly less objective standard called "substituted judgment" to replace the best interests standard in certain situations. Under this new …

Cocaine, Demand, And Addiction: A Study Of The Possible Convergence Of Rational Theory And National Policy, A. Morgan Cloud, Iii

Vanderbilt Law Review

As the "war against drugs" meanders through the century,' policy-makers continue to search for effective strategies for combating the illegal drug industry. For seventy-five years the dominant federal strategy has been to curtail supplies of prohibited substances.' In its many permutations, this supply-side approach has included attempts to eradicate crops, to intercept drugs at the Nation's borders, and to arrest, prosecute, and punish commercial participants at every level of the production and distribution system.

By any rational measure, the supply-side "war against drugs" has failed. Only ten to fifteen percent of the illicit drugs entering the country are intercepted and …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

Agency for International Development's Adoption of Policy Placing Abortion-Related Restrictions on Grants to Nongovernmental Organizations Upheld DKT Memorial Fund Ltd. v. Agency for International Development 887 F.2d 275 (D.C. Cir.1989)

Federal Long-Arm Statute Authorizes Assertion of Personal Jurisdiction over Foreign Holder of United States Patent in Patent Ownership Suit National Patent Development Corporation v. T.J. Smith & Nephew Ltd. 877 F.2d 1003 (D.C. Cir.1989) (en banc)

Venue over Alien Defendants in Antitrust Suit Proper in any United States Federal District Court under Alien Venue AcT-Go-Video, Inc. v. Akai Electric Co., Ltd. 885 F.2d 1406(9th Cir. 1989)

INS Oral Notice to …

The Corporate Practice Of Medicine Doctrine: An Anachronism In The Modern Health Care Industry, Jeffrey F. Chase-Lubitz

Vanderbilt Law Review

Corporations, in the form of small, doctor-owned, proprietary hospitals and community or charity nonprofit hospitals, have pervaded the provision of health care services for many years. Recently, however, private, for-profit corporations increasingly have entered the health care field. One industry expert predicts that by the mid-1990s, ten national firms will provide fifty percent of the nation's medical care. Nationwide hospital chains, nonexistent twenty years ago, now own or manage twelve percent of the nation's hospitals. The proliferation of health maintenance organizations, freestanding emergency centers,' and other proprietary health care delivery systems exemplify the increased commercialization of medicine. Indeed, many young …

The Rutabaga That Ate Pittsburgh: Federal Regulation Of Free Release Biotechnology, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

When the Environmental Protection Agency (EPA) first approved a field test of a bioengineered microbe,' one EPA official remarked: "We're not expecting this to be the rutabaga that eats Pittsburgh.' 2 But regulators cannot afford to be wrong. Bioengineered microbes may serve many useful purposes, but they may also cause harm to the environment and to human health.3 Although the risks of an accident stemming from the deliberate release of bioengineered microbes into the environment may be low, the resulting damage could be substantial. This note examines the possible consequences of two recent trends in biotechnology-the development of bioengineered microbes …

Informational Regulation Of Consumer Health Risks: An Empirical Evaluation Of Hazard Warnings, W. Kip Viscusi, Wesley A. Magat, Joel Huber

Vanderbilt Law School Faculty Publications

On the basis of data from a survey of almost 400 consumers, this article assesses whether consumer behavior is responsive to information about product hazards that is provided in response to regulation. We find that the extent to which consumers take precautions is consistent with the level of risk indicated, the amount of risk information, the specific risk and precaution indicated, and the economic benefits of safety precautions. We also use the patterns of precautionary behavior to analyze the implicit value of the morbidity effects and to assess the consistency of consumer choices. Our findings support the use of product-hazard …

Legal Rights And Issues Surrounding Conception, Pregnancy, And Birth, Hutton Brown, Miriam Dent, L. Mark Dyer, Cherie Fuzzell, Anita Gifford, Sam Griffin, A. G. Kasselberg M.D., Jayne Workman, Melinda Cooper

Vanderbilt Law Review

Advances in medicine are reported almost daily in the media. Medical researchers have developed and are continuing to develop new methods of creating, saving, and prolonging life. This Special Project examines the impact that rapidly advancing medical technology has on the law governing conception, pregnancy, and birth.

Although medical techniques have advanced rapidly during the past decades, state and federal legislatures have responded in-adequately to the legal consequences of these new birth technologies. The resulting lag between technology and the law has forced courts to confront new situations that do not fit neatly into the statutory framework created to deal …

Alas! Poor Yorick," I Knew Him Ex Utero: The Regulation Of Embryo And Fetal Experimentation And Disposal In England And The United States, Nicolas P. Terry

Vanderbilt Law Review

Replete with analogies drawn to war crimes and expressed fears that the progress of medical science would be halted, the debate over the ethics of human experimentation is nothing if not complex. Nevertheless, in 1978 The Belmont Report was at least able to identify certain generalized ethical principles to guide researchers: "respect for persons," "beneficence," and "justice."' These ethical principles, however, are based ultimately on our perceptions of humanity and personality. Applying these principles to research on fetuses or embryos is fraught with difficulty. Neither of our pluralistic societies has resolved the "separate" debate regarding the appropriate status afforded pre-viable …

Barriers To Providing Effective Treatment: A Critique Of Revisions In Procedural,Substantive, And Dispositional Criteria In Involuntary Civil Commitment, Donald H. J. Hermann

Vanderbilt Law Review

Anyone spending time in a major urban center in the United States must be shocked by the significant number of mentally ill persons living on the streets--the "bag people" who sleep in door-ways, on steam grates, on subway stairs. These people represent a new lifestyle made possible in part by a policy of deinstitutionalization of the mentally ill, which has been motivated largely by economic considerations and rationalized as a matter of mental health law reform. Another major factor contributing to the increasing denial of treatment to the mentally ill has been a revision of the mental health statutes. A …

Reducing Diet-Induced Cancer Through Federal Regulation: Opportunities And Obstacles, Richard A. Merrill

Vanderbilt Law Review

For more than a decade, federal health regulatory agencies have devoted major attention to controlling human exposure to substances believed capable of causing cancer. These efforts have evoked a broad spectrum of criticism; government has been accused of both indolence in the face of an incipient epidemic' and reckless distortion of science to support restrictions on substances that present only trivial risks. A central object of regulatory concern has been the safety of the food supply. At least since the 1958 Food Additives Amendment to the Federal Food, Drug, and Cosmetic Act (FD&C Act),'with its famous Delaney Clause, the Food …

"New And Improved" Estimates Of Qualification Discrimination, Joni Hersch, Joe A. Stone

Vanderbilt Law School Faculty Publications

The early offer reform proposal for medical malpractice provides an option for claimants to receive prompt payment of all their net economic Losses and reasonable attorney fees. Using a Large sample of closed individual medical malpractice claims from Texas supplemented by data from Florida, this article provides an empirical assessment of the consequences of the early offer reform. Noneconomic damages make up about two-thirds of paid claim amounts. The minimum payment amount for serious injuries will affect the magnitude of insurer savings and claimant compensation. Payments to claimants will be expedited by 2 years by the early offer reform, and …

Dangerousness And Expertise, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The defendant-first approach advocated in this Article is more difficult to implement than either the current policy admitting any proffered expert testimony or the exclusionary reform advanced by many commentators. It requires some mechanism for apprising the state when the defense intends to use clinical prediction testimony. When no such intent is registered, it demands that any other clinical testimony, whether offered by the state or the defense, be carefully monitored to insure that the dangerousness issue is not raised; it may require revamping other procedures as well.2 " But the defendant-first approach also presents the factfinder with the most …

Automatic And Indefinite Commitment Of Insanity Acquittees: A Procedural Straitjacket, John B. Scherling

Vanderbilt Law Review

This Recent Development suggests that the Court erroneously decided Jones. Part II examines the Supreme Court's constitutional analysis of commitment procedures and discusses postacquittal commitment in state and lower federal courts. Part III analyzes the Jones decision and the exception that it allows for the commitment of insanity acquittees. Part IV contends that prior to involuntary and indefinite commitment an insanity acquittee deserves the same standard of proof as a civil commitment candidate-proof of mental illness and dangerousness by clear and convincing evidence. Part IV also argues that absent proof by clear and convincing evidence of the acquittee's need for …

Some Order Out Of Chaos In Wrongful Death Law, T. A. Smedley

Vanderbilt Law Review

In this Article, the author endeavors to outline a fair and manageable uniform law on wrongful death. Part II of this Article summarizes the historical development and inadequacies of the diverse types of wrongful death and survival laws in the United States.Part III explores the damages recoverable under the existing statutes. Part IV examines two significant proposals for reforming this area of the law. Finally, parts V and VI contain the author's suggestions for a fair yet manageable wrongful death statute that may serve all jurisdictions.

Alternative Approaches To Valuing The Health Impacts Of Accidents: Liability Law And Prospective Evaluations, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

The task of valuing accidental injuries and deaths is intrinsically difficult for two reasons. First, unlike standard consumer commodities, individual health is not traded explicitly on the market. It may be traded implicitly as with wage premiums for risky jobs, but these implicit prices must be estimated statistically. The second problem is that the value one places on any economic commodity depends on the welfare one can derive from it. Since adverse health effects influence the welfare one can obtain from any given level of income, the value of one's health status depends on the context in which such values …

Potentially Hazardous Merchandise: Domestic And International Mechanisms For Consumer Protection, Eric Shuman

Vanderbilt Journal of Transnational Law

Health disorders engendered by hazardous, exported foods, pesticides, drugs, and other products recently have attracted worldwide attention. The exportation of products which have been banned or highly restricted in their country of origin or which become hazardous in the environment of the importing nation is a popular issue for opponents of a perceived monolithic transnational industrial complex, as well as for critics of certain United States corporations. A more widely shared opinion is that the United States has a moral obligation to limit foreseeable harm from the export of potentially hazardous merchandise or at least to supply product hazard information. …

Health And Safety, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

My review of recent risk regulation policies necessarily starts with the new oversight group within the Office of Management and Budget (OMB), because it has been the dominant force for improvement thus far. Unfortunately, OMB's efforts have not been matched by a similar commitment at the agency level.

Competition Versus Regulation In Medical Care: An Overdrawn Dichotomy, Randall R. Bovbjerg

Vanderbilt Law Review

This Article discusses these issues in considering the "competitive" approach to reforming medical care financing and delivery.Although the approach is an extremely promising one, strongly held individual and social values underlie the current system, and powerful private interests have a stake in the status quo. Reforms,therefore, may never be fully implemented or realize their theoretical potential in practice. In any case they will take some time to work; no approach can be an immediate panacea. If government is to embark upon a "procompetitive" course, it needs to proceed carefully. Especially during the transition to a more competitive system, we need …

Antitrust Scrutiny Of The Health Professions: Developing A Framework For Assessing Private Restraints, Robert F. Leibenluft, Michael R. Pollard

Vanderbilt Law Review

This Article has suggested that courts adopt an intermediate level of scrutiny, between per se and Rule of Reason analysis. Under this analysis, a rebuttable presumption of illegality attaches to those practices which in other contexts are per se illegal. The weight of this presumption varies with the familiarity of the court with the restraint, its similarity to traditional per se conduct, and the strength of the procompetitive justification.This analytical approach is desirable for two reasons. First,courts are reluctant to apply commercial per se rules of illegality to professional restraints, and with good reason. Professional practices do differ from purely …

Health Professionals' Access To Hospitals: A Retrospective And Prospective Analysis, Jane L. Davis

Vanderbilt Law Review

The professional interdependence of the hospital institution and practicing physicians is a phenomenon of post-World War II society. This Note first examines the historical development of that interdependence and explores its erosion into a hospital-dominant mode. Next it examines the most important forces that influence and complicate the question of hospital privileges for the physician within the modern hospital: the interrelated pressures of intraprofessional restraints, pertinent government regulation, and medical technology. Then it sketches the internal procedures that have engendered and defined the relationship between physician and hospital, with special attention to the weaknesses within the procedures that have led …

The Public Interest And Governing Boards Of Nonprofit Health Care Institutions, Robin Dimieri, Stephen Weiner

Vanderbilt Law Review

This Article specifically considers whether the existing legal system permits corporate governance mechanisms to function in a manner that promotes the public interest, particularly the public's interest in disclosure and participation in institutional policy development. The Article focuses on the viability of corporate governance structures in the health care industry, with special emphasis on the nonprofit hospital corporation. The Article begins with an overview of the issue of role reversal between management and directors of nonprofit corporations.The manifestations of role reversal are seen in the trend in non-profit corporations toward excessive delegation of board powers to executive committees, the elimination …

Medical Care And Procompetitive Reform, T. R. Marmor, Richard Boyer, Julie Greenberg

Vanderbilt Law Review

It is not the purpose of this Article to reject all features of procompetitive proposals. Competitive health plans, multiple health plan choice, provider and consumer cost consciousness, and antitrust activity all may have some place in a larger strategy to rationalize the medical care system. Each of the proposals has some advantages in terms of increasing consumer choice and altering the balance of power between existing actors. As an approach to universal medical care system reform, however, competition alone is inadequate. In fact, one could argue that the most technically feasible way to both rationalize the medical care system and …

Redefining Government's Role In Health Care: Is A Dose Of Competition What The Doctor Should Order?, James F. Blumstein, Frank A. Sloan

Vanderbilt Law Review

Throughout the 1970s, the two major political parties espoused some form of national health insurance. Faced with a fiscal squeeze, however, the Carter Administration gave national health insurance a relatively low priority.The political movement for comprehensive national health insurance rests on an ideological commitment that the federal government should underwrite the cost of providing universal access to medical services. The objective is essentially redistributive in nature: equitable concerns for the disadvantaged loom as the major focus. The selective expansion of coverage to encompass those identified as needy and worthy, but only those so identified, is anathema to those who traditionally …

Health Care, Markets, And Democratic Values, Rand E. Rosenblatt

Vanderbilt Law Review

Proposals to restructure the health care industry by increasing market competition currently have much political and academic momentum. Whether such proposals will work necessarily depends in part upon the criteria for success that are applied. Viewed from the market perspective, the question is whether procompetitive reforms will achieve their stated goals of containing costs, increasing efficiency, and enhancing consumer sovereignty over health care decisions. From a broader perspective, other questions are also of concern: whether increased competition in health care will actually improve people's health, and whether the operations and effects of health care competition are consistent with important values …

Competition In Health Services:Overview, Issues And Answers, Clark C. Havighurst

Vanderbilt Law Review

This Article is intended to put in context the many issues raised by this new interest in competition as a disciplinary force in the health services industry. After presenting a statement of the general theory supporting increased reliance on market forces, the Article turns to the key arguments advanced against that theory. The issues are many and complex, and the Article makes no attempt to treat them exhaustively. Rather, the aim is to highlight the weak as well as the strong points for and against competition in a manner that focuses the controversy and clarifies the issues. Until very recently, …

Acid Precipitation In North America: The Case For Transboundary Cooperation, Douglas M. Johnston, Peter Finkle

Vanderbilt Journal of Transnational Law

Long-range air pollution has emerged as a serious environmental problem in Europe and North America since the early 1950s. The most critical aspect of this problem is the movement over very long distances of airborne pollutants which eventually are deposited in harmful acid compounds. These pollutants originate in a multiplicity of stationary and mobile emission sources. Because the original pollutants undergo chemical changes during the atmospheric transport, the pollutants which ultimately cause damage are chemically different from the original emissions. Moreover, the pollutants, which are usually deposited in the form of rain or snow, cause harm only in special physical …

Encouraging Safety: The Limits Of Tort Law And Government Regulation, Richard J. Pierce, Jr.

Vanderbilt Law Review

Society wants more expenditures to reduce the risks of injury,illness, and premature death associated with many activities, but simultaneously it wants the fruits of those activities to continue to be available at a low cost. To some extent, these goals are inherently in conflict. On occasion society may give vitality to the slogan that human life has an infinite value, but it can do so only in narrow contexts and for brief periods. More often, artful self-deception is practiced to create the appearance of adhering to an impossible, but widely held, ideal, while in actuality lives are balanced against dollars. …

The Role Of Mental Health Professionals In The Criminal Process: The Case For Informed Speculation, Christopher Slobogin, Richard J. Bonnie

Vanderbilt Law School Faculty Publications

In this article we have attempted to make the case for continued participation by appropriately qualified mental health professionals in the adjudication of reconstructive subjective issues of the criminal law. In Part I, we outlined the reasons why imprecision and speculation is and must be tolerated in doctrines of exculpation and mitigation. In Part II, we developed the case for evidentiary rules which permit "informed speculation" by qualified clinical experts so as to enable defendants to explore and present subjective defenses and assist triers of fact to assess the plausibility and significance of such claims. We recognize that many mental …